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Right to Information: Introduction, Origin and Indian Constitution

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Right to Information: Introduction, Origin and Indian Constitution!

Introduction:

The three exponents of social contract theory imagined a state of nature where people enjoyed some rights which were known as natural rights. Gradually civil society was formed and the rights came to be recognised by the state and the recognition by the state added a new wing to the body of rights. The wing is— rights are required to be protected by the state.

There is an opinion (and it is valuable) that rights recognised or not are always rights and every citizen is entitled to these rights. But there is a problem—individuals are entitled to rights is not all. Who will protect these rights? Because if rights are not protected by an authority, it has no practical value. Hence the protection of rights is a very important aspect.

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There is a broader and inner meaning of right. Every right is natural in the sense that without right human beings cannot lead a normal life. And whenever the concept of right arises the idea of protection arises with it. I have right to take my food and while I am doing the job another man snatches away my food which means that I am deprived of my right to live by taking food.

Hence naturalness of right is not all, it must be protected. In any civil society (the term used here is quite broad) there are many rights and all the rights, in broad sense, are natural. If the right to live is natural, person has also the right to know from where he will get the food and drink because these are indispensable for life. Here comes the right to information. So if the right to live is a natural right, so also is the right to information.

Origin of the Right:

S.D. Sharma and Priti Saxena in their highly informative book Right to Information: Implementation, Problems and Solutions (2013) have said “The Right’ to Information can be traced back to the year 1215 when the great barons of England who forced from the hands of the unwilling King John the glorious charter of popular liberties known as Magna Carta”. In one place of this very important document it has been said “No freeman shall be taken or imprisoned or dispossessed or outlawed or banished or in any way destroyed-except by the lawful judgment of his peers and by the law of the land.”

This declaration of the Magna Carta contains undoubtedly the needs of the right to information. It is because the declaration of punishment must be preceded by the opinion of the peers as well as the law of the land. In other words, the judge or the king must be equipped with the proper information regarding the wrong done by the citizen. To put it differently the decision of the judge or any other person performing the duty of the judge must have proper information.

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Before convicting a man the judge must have at his deposal all the necessary facts. Moreover, the person against whom charges have been levelled has also the right to know what charges have been brought against him or on what grounds he is convicted. This is right to information.

Marx and Engels in their analysis of historical materialism have said that both in slave society and feudal society people were always unlawfully punished and they were denied of the right to know on what grounds they were punished I his means that the unfortunate people of slave society and feudal society were deprived of the right to life and also the right to information. In the industrial society (a product of Industrial Revolution) consciousness and reason dawned in the mind of the people.

The working men formed organisation and collectively protested against the torture or injustice perpetrated on them. Here lies the concept of information in concealed form. The workers gather the information that the capitalists are exploiting them by governing less wage. This form of information is the central theme of the rising tendency of working class movement

In the modern democratic system the right to information has a special importance. We know that the authority or government is accountable to the people which means that, the electorate can claim information about the activities of the government. To claim information or to call for an explanation for the policy adopted by the government or work done by it is also an aspect of the right to information.

Thus the central idea of the democratic government and also governance is right to information. The social contract theorist- Rousseau- imagined of a body politic in the model of Greek city-state. In an open assembly people gathered at a fixed date and time and participated in administration including the law-making function. In this process there lies, in hidden form the right to information. People’s participation was functional as well as meaningful because there was an easy flow of information. People demanded to know the condition of governance.

The Idea of Right to Information:

Many people say that the very foundation of democracy is to be well-acquainted with all the major aspects of the functioning of democracy because every citizen has this right. The right to know about what is happening in society is really the oxygen of-democracy. In ancient Greek city-states people assembled together and discussed the important aspects of state.

Because of changes in various fields the system of direct democracy is practically an impossibility. But people have the right to know the major aspects of society and this is the right to know. We can say a tax payer has every right to know for what purpose and in what ways his money collected in the form of taxes is being spent.

The concept of right to information may be viewed still from another perspective. Democracy is the result of collective efforts and the collective efforts will never be possible without the right to information. People will do their duty on the basis of information they get from society. Behind every act there must be information. A critic makes the following comment: “The collective efforts are only possible with the access of information to the people of democratic society” Sharma and Saxena, Right to Information,.

We find the following comment in a report of the Government of India: “It is now widely recognised that the openness and accessibility of people to information about the government’s functioning is a vital component of democracy.” When the citizens are deprived of the right to know about the working of the state that can clearly be stated as the abnegation of democracy.

Right to Information, Democracy and Good Governance:

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We now deal with a very vital concept. In a report of Administrative Reforms Commission it was said that the right to information is the bed rock of democracy. It is because the important aspects of democracy are transparency, openness, accessibility of every citizen the working of government. And in this connection the accountability of the ruler to the ruled. Now the ruled will have no scope to call for explanation if they have no information about the working of the government.

Hence accountability and right to information are closely connected. John Locke in his theory of social contract built up the idea of accountability. He said that if the authority of civil society fails to discharge its responsibility according to the terms and condition of contract the members of the civil society will have the right to dislodge the authority from power. Thus we find that the right to information and accountability stay together and are bound by inseparable relation.

The public administration of a state is also legally and constitutionally bound by the principle of accountability. I have already noted that Locke introduced this principle and the great framers of the American Constitution adopted this principle in their constitution. This, in other, words is called constitution. This in other words is called constitutionalism. The term constitutionalism is prac­tically useless if the citizens have no free access to the activities of state. Broadly speaking, constitutionalism and right to information stand on the same ground and are closely related with each other.

We shall now turn to the relationship between right to information and good governance. The term good governance is a recent addition in the concept of public administration. This term has considerably expanded the scope of public admin­istration. The scope or purpose of public administration is not simply to maintain law and order and to implement the decisions of the executive.

The purpose of public administration is to achieve both the welfare objectives and, at the same time, over-all progress of body politic. Now it is rightly observed that how far the administration of a state falls within the category of good governance should be judged by the people. General public pay taxes and they expect their tax is properly spent for the development purposes. But how far a government has achieved success is required to be judged by the tax-payers.

Here lies the crux of the issue. If men -are the final authority to decide the nature and quality of governance they must have enough information about the functioning of the government. Here comes the right to information. The relation between good governance and right to information shall be explained with the help of a judgment of the Supreme Court. In Dinesh Trivedi v. Union of India the highest court made the following observation: “In modern constitutional democracy, it is axiomatic- that citizens have a right to know about the affairs of government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare.”

It is not the only characteristic feature of democracy that it is elected by people. This form of government is accountable to the electorate whose simple implication is that the electorate will have right to know the policies and functions of the government and the latter is bound to comply with this demand. This is called the openness of democracy. This openness and citizens’ right to information imply same thing.

Again, openness and right to information are both synonymous with freeness of society. People, in a democracy, send their repre­sentatives for the purpose of governing them and, if so, they have every right to know how or in what manner they are governed. In other words, the citizens want to know the standard or quality of governance.

Whether the governance is good or bad that can be ascertained from the facts and other aspects of administration. This is ascertained from the facts. Naturally citizens can claim information. Refusal to release facts indicates that there is something hidden. When the government wishes to hide something that goes against the norm or process of good governance.

The matter can be viewed from another perspective. Good governance depends upon the concept efficient and honest government. In democracy only an educated, alert and efficient body of electorate can form a good government. But an efficient body of voters is that which keeps all sorts of information about the functioning of a government including the various aspects of state affairs.

Thus the spirit of good governance is-the authority gives utmost priority to the overall welfare of the body politic and simultaneously there is ample scope in the society to earn awareness about the manifold aspects of society. So in a system of good governance there must exist transparency and it is the duty of the state to ensure a situation of transparency.

We further maintain that the claim of the authority that there exists transparency, the citizens will have right to know the happening of state. Now the question-is what is information. It may be defined in the following way the information means all affairs of the state or of all local or municipal authorities which are constituted in accordance with the constitution or any act made by the state authority.

The 73rd and 74th Amendments to our Constitution also come within the purview of right to information and good governance. These two amendments were made primarily for the decentralisation of power to the grassroot level of society. These two amendments have added additional emphasis to the concepts- right to information) good governance and democracy.

People of the rural areas are associated with Panchayati Raj Institutions (PRI) and inhabitants of cities and towns fall under the jurisdiction of municipalities and corporations. The people of both panchayat system and urban areas have right to know the functioning of these two local but vital bodies. We thus find that the right to information is not only an important right, it is a vital right and in broad sense it is backbone of democracy. The right to information establishes the fact that the governance is for the welfare or betterment of people. In other it is good governance.

Right to Information and Indian Constitution:

The Constitution of India does not specifically mention the right to information. But it is the considered opinion of many experts that in a number of articles there- are clear hints to this right. For example, the Art. 191(a) says that all citizens have the right to freedom of speech and expression. But this right is not absolute. Art. 19(2) provides the following limitation. Nothing in sub-clause (a) shall affect the operation of any existing law or prevent the state from making any law.

In spite of the constitutional limitations upon the freedom of speech and expression the Indian judiciary has interpreted this right in a different way which has introduced the right to information. In the opinion of the judiciary the right to freedom of speech and expression has no practical value without the right to information, because whenever a citizen wants to express his view he must be in possession of sufficient information about the issue on which he expresses his opinion.

Hence if the right to freedom of speech and expression is a fundamental right, the right to information is also a fundamental right. Now if the rights conferred by Art. 19(l)((a) is guaranteed by invoking the Art. 32 of our Consti­tution, the right to information is also guaranteed by Art. 32. Art. 32 says that the citizens have the right to move the Supreme Court for the enforcement of the right. Hence we are of opinion that the right to information is also guaranteed by the highest court.

The Kerala High Court in its judgment of a case in 2010 said that the right to information is considered as an integral part of the right to freedom of speech and expression. Art. 226 says that every High Court shall have power to issue to any person or authority for the enforcement of right.

The Preamble to the Constitution of India also contains certain declarations or we may call promises some of which are indications of the right to information. For example, our Constitution promises to give to Indians the liberty of thoughts’, expression, belief, faith and worship. This promise given by our Constitution also indirectly supports the right to information.

Without information, thought and belief can never germinate or develop in the mind of people. The Preamble further says that the people will have the scope to believe anything. But- every belief will have a solid foundation which is information. We, therefore, say that most of the parts of the Preamble are closely connected with the right to information.

Our Constitution provides for a parliamentary form of government. Members of the parliament and state assembly are directly elected by people. Recently the Election Commission has made it mandatory for every person contesting election to publish certain basic information about him.

The purpose is that the voters must know the person whom they are going to or elect. This, means that the legislature must consist of persons of high quality and good character. We cannot expect a healthy tree from a defective seed. Hence we hold the view that the very foundation of good democracy is well-informed and honest electorate. This, in turn, leads to the affirmation and implementation of the right to information. To sum up, our Constitution, in various ways, confirms the right to information.